A jury сonvicted James R. Willey of felony murder, involuntary manslaughter, conspiracy to commit aggravated battery, conspiracy to commit burglary as a Class A felony, and burglary as a Class A felony. Three of the counts were “merged” into the remaining two at sentencing, and Willey was sentenced to consecutive terms of fifty years for conspiracy to commit burglary and sixty-five years for felony murder.
In this direct appeal, Willey contends that: (1) the trial court erred in admitting testimony regarding the results of a polygraph examination; (2) the statement he gave to police should have been suppressed as involuntary; (3) the trial court erred in allowing hearsay statements by several witnesses regarding threats that Willey had made to the victim and her fear of him; (4) the admission of several autopsy photographs of the victim constitutes fimdamental error; (5) his dual convictions and sentences for felony murder and conspiracy to commit burglary violate federal double jeopardy; and (6) the trial court improperly found two aggravating circumstances at sentencing. We affirm the convictions and sentence.
Factual and Procedural Background
On March 12, 1997, Willey left Indiana for Florida where he stayed with his aunt. Eight days later, Janice Willey’s body was found in her garage by her son. She had been smothered, strangled and beaten with a sledgehammer. Janice and Willey were married in 1963 and divorced in 1987. Shortly after the divorce, Willey returned to the resi *438 dence and the two lived together until the fall of 1996 when Willey moved out of the home at Janice’s request. Willey retained a key to the home and returned virtually every day until Janice started using a deadbolt in early 1997.
On March 23, 1997, police investigating Janice’s death spoke with Roger Barnard, a friend of Willey’s. The following day, when police attempted to speak with him again, Barnard shot and killed himself in the parking lot of a tavern.
On March 25, a Florida police officer spoke with Willey at the request of Indiana authorities. The officer told Willey that Barnard had shot himself and had implicated Willey in Janice’s death before he died. In fact, Barnard had said nothing about Willey. The officer asked Willey if he would be willing to take a polygraph examination and Willey replied that he would submit to a polygraph in either Florida or Indiana, whichever the police preferred. The next day several Indiana State and Boone County police officials flew to Florida to meet with Willey.
Willey agreed to meet with the officers at a Florida police station to give a statement and take a polygraph examination. At the station, the polygraph examiner, a reserve officer of the Boone County Sheriffs Department, orally advised Willey of his Miranda rights and also gave him a written “Advice of Rights — Interrogation” form, which recited the Miranda rights and also included a waiver of the right to remain silent and the right to legal counsel. Willey signed, the form after reading it. He also read and signed a
“Polygraph Waiver” whiсh also included a statement of Miranda rights. Willey signed a third document entitled “Stipulation” stating that he waived his privilege against self-incrimination as to information resulting from the polygraph examination. The stipulation was orally reviewed point-by-point and signed by Willey. Willey declined the opportunity to have the interview recorded in audio or video.
In the polygraph interview Willey denied involvement in Janice’s death. The polygraph certified examiner, Officer Klingler, after discussing the exam with Boone County Sheriff Hudson, who was also polygraph certified, concluded that the test indicated deception. He then confronted Willey with his interpretation and asked Willey how it occurred. Willey initially made some admissions, and after individual questioning by the other officers over the next few hours agreed' to make a statement at about 10:00 p.m. He was given the option of writing or typing the statement himself, but asked Boone County Sheriff Hudson to type it for him. Willey then gave a statement that in substance admitted to an agreement with Barnard to “rough up” Janice while Willey was in Florida. Willey also admitted to giving Barnard $7,000 in cash, some guns, and a watch “to hold for me ... while I was in Florida.” 1
According to Hudson, Willey appeared to be alert and coherent and to understand everything that was happening at the time he signed the statement. .Hudson reviewed Wil-ley’s Miranda rights before beginning the statement, read each paragraph to Willey *439 “word-for-word” after it was typed, and had Willey read and initial each paragraph after the entire statement was typed.
Several days later the police transported Willey to Indiana. At that time Willey was again advised of his Miranda rights and agreed to talk to the transporting officers. When asked if the written statement was true, Willey stated that it was. Willey was also asked about each point in his typewritten statement to police and agreed that each was true. Willey also volunteered that “[i]f I just wanted [Janice’s] ass kicked, I would have done it myself.”
Willey was charged with conspiracy to commit aggravated battery, conspiracy to commit burglary as a Class A felony, involuntary manslaughter, felony murder, and burglary as a Class A felony. He filed a pretrial motion to suppress his statement to police and all evidence pertaining to the polygraph examination. Both motions were denied after a hearing. A jury found Willey guilty of all charges.
I. Admissibility of Polygraph Results
In his pretrial “Motion to Suppress and Exclude All Evidence Pertaining to Polygraph Examination,” Willey raised several grounds for the inadmissibility of “all evidence” relating to the polygraph examination. 2 At trial Willey did not object to much of the polygraph examiner’s testimony, including the questions asked and the answers given. But when the State asked the polygraph examiner if he arrived “at a determination — as to whether or not the Defendant had told the truth on the relevant questions,” Willey objected on the ground that the stipulation did not permit the trial сourt or jury to hear the results of the polygraph test.
As this Court recently observed in
Sanchez v. State,
1. The above-named individual has requested that he be given a polygraph examination by a qualified Boone County Law Enforcement Officer.
2. That Pamela Buchanan, Prosecuting Attorney, consents to said polygraph examination.
3. That the examiner will be competent polygraph examiner and qualified by his education, training and experience to testify as an expert witness in interpreting the results of the polygraph examination performed by him and the use of the polygraph as a means of detection of deception.
4. That the questions of the examiner, the answers by the individual any interrogation or other things relating to said examination, may be admitted as evidence, either on behalf of the State of Indiana or on behalf of the individual, subject to the discretion of the Court trying such ease.
5. That the above-named individual hereby waives his constitutional privilege against self-incrimination to the extent that the same may be involved in the presentation of evidence in the foregoing matters.
6. The above-named individual also understands that without his consent to the use of these test results, said test results would otherwise be inadmissible.
7. The defendant’s polygraph chart recordings, the examiner’s various work sheets and all questions other than the relevant test questions are not to be introduced into evidence.
8. It is further understood by all parties that upon signing this Agreement and Stipulation, it is not only binding upon them individually; but upon all further parties and their successors in interest, i.e. such other counsel as the State or the defendant may retain or employ for any trial or hearing involving this indictment.
The stipulation is a contract between the State and Willey.
Atkinson v. State,
Paragraph four of the stipulation plainly and unambiguously allows the admission of the examiner’s relevant test questions and Willey’s answers, and these were not objected to at trial. Rather, Willey’s objection was to the examiner’s opinion as to Willey’s truthfulness. The stipulation is ambiguous on this point.
See USA Life One Ins. Co. v. Nuckolls,
Other Indiana eases provide examples of stipulations that unambiguously provide for the admission of a polygraph examiner’s opinion testimony regarding the defendant’s truthfulness in answering questions.
See, e.g., Willis v. State,
In addition to failing the
Sanchez
test requirement that the stipulation provide for “admission at trial of the [polygraph] results,” there is a separate and equally serious problem with admissibility of this examiner’s opinion. Willey submitted to the polygraph after being informed, falsely, that Barnard had implicated him in the crime. It is true, as the State points out, that police deception does not vitiate a Miranda waiver and render a confession inadmissible, but. is rather one consideration that must be viewed in determining the “totality of the circumstances.”
See, e.g., Frazier v. Cupp,
The same is not true of a stipulation to take a lie detector test. Viewed as a matter of contract, the stipulation is based on a misrepresentátion of fact. One can easily imagine that an innocent suspect, confronted with a false report that a perpetrator had implicated the suspect, would agreе to a lie detector test in the belief that it would exonerate the suspect. Moreover, the product of the deception does not share the reliability of a confession. Indeed, the courts of this state have repeatedly and correctly expressed severe reservations about the- reliability of polygraph results.
See, e.g., Madison v. State,
Even though the trial court erred when it allowed this testimony, the error is harmless “if its probable impact on the jury, in light of all of the evidence in the case, is sufficiently minor so as not to affect the substantial rights of the parties.”
Fleener v. State,
II. Statement to Police
Willey also contends that the trial court erred when it denied his motion to suppress his statement to the police because (1) he did not receive proper Miranda warnings “throughout the interview process;” (2) he was not advised of the possible charges against him; and (3) the statement was drafted by the police. Willey concedes that the language in the rights form that he read and signed complies with Miranda, but argues that the “one time reading” of the Miranda warnings shortly after 3:00 p.m. was not sufficient to properly advise him of his rights. He points to the events following the initial advisement and waiver of those rights. The polygraph examination lasted until approximately 6:00 p.m., and then the polygraph examiner discussed his conclusions with Willey and asked Willey for a possible explanation of his finding of deception between 6:30 and 7:40. Sheriff Hudson interviewed Willey from 7:50 to 8:30, followed by Detective Knox’s interview from 8:40 to 9:20. Detective Crane next interviewed Willеy from 9:30 to 9:55, and then Marshal Effler talked to Willey briefly. All of the investigators returned to the interview room at approximately 10:00 to finalize a statement from Willey. Sheriff Hudson asked Willey if he remembered being advised of his right to remain silent and the right to an attorney, and Willey stated that he did. The typewritten statement was then prepared, which Wil-ley signed at 10:40 p.m.
The Miranda warnings need not be repeated “if the circumstances surrounding the interruption or adjournment of the process have not deprived the suspect of the opportunity to make an informed and intelligent assessment of his interests involved in the interrogation.”
Heavrin v. State,
Willey also asserts error based on the alleged failure of the police to notify him of the possible charges facing him. However, Willey testified at trial that Sheriff Hudson told him he could be charged with four or five diffеrent offenses, including murder. Moreover, there is no need to inform suspects of all potential charges before taking a statement because of innumerable unknown factors that may affect the resulting formal charges.
Armour v. State,
In sum, none of these three bases asserted by Willey renders his statement involuntary.
III. Admissibility of Hearsay Statements
Willey next, argues that the trial court erred when it overruled several of his hearsay objections. Eight witnesses, including the Willeys’ son, Willey’s sister, a co-worker and close friends of Janice’s, police officers and a psychologist testified that Janice had told them that she feared Willey and/or that Willey had threatened to kill her. James Willey Jr. testified that he spoke with Janice shortly after a May 5, 1996 incident that resulted in police being called to his parent’s home. He testified that his mothеr sounded afraid and upset. The State then asked if Janice told him “what was making her scared,” and defense counsel objected based on hearsay. The trial court overruled the objection and the witness responded
[s]he said that he had threatened her life, that he would kill her and that she was scared and as a result she had packed her bags and had moved out. She had left. She had called 911 when things got too violent. I mean, she didn’t say he had struck her, just that he had clearly threatened and she was afraid for her life and so she called 911, they responded, they escorted her out of the house and she left.
The testimony of the other seven witnesses is sufficiently similar to that quoted above that its admissibility stands or falls under the same analysis that applies to this statement. 4
At trial, the State asserted that this testimony was admissible because it was offered to prove motive or intent, not the truth of the matter asserted. However, it is readily apparent that this testimony was offered to prove the matter asserted, specifically that Willey had threatened Janice. Therefore, it is hearsay and inadmissible unless one of the' exceptions applies. Motive and intent of the defendant are potentially relevant to the admissibility of prior “bad acts” under Evidence Rule 404(b), but do not constitute an exception to the hearsay rulé. On appeal, the State argues that this testimony falls under the state of mind exception to the hearsay rule: “These comments directly establish Janice’s state of mind at the time she made the statements and demonstrate her fear of Defendant/’ See Ind. Evidence Rule 803(3). ’
*444
In addition to the requirement that hearsay fall under an exception to be admissible, the Rules of Evidence also mandate that only relevant evidence is admissible. Evid. R. 402. This Court recently observed that a “victim’s state of mind is relevant where it has been put in issue by the defendant.”
Angleton v. State,
The record does not support the State’s claim that Willey put in issue his relationship with Janice. During opening statement the prosecutor noted that the Willeys were divorced and read Willey’s typewritten statement to the police,
see supra
note 1, which included the statements “I have threatened Janice before. I was mad at Janice because she booted me out last November 1996.” Defense counsel’s opening statement made no specific mention of the nature of the relationship between Willey and Janice. Rather, defense counsel merely stated that Willey “repudiates that statement in some respects and by that I mean to say he will testify and tell you that that statement, regardless оf what it says, is not really accurate in all respects and he’ll explain that to you.” It was clear from the outset of the trial that the Willeys were divorced and that their relationship was strained. This is not a situation as in
Angleton,
where the “defendant put the victim’s state of mind at issue by portraying her as a happily married wife who peacefully spent her time writing love notes and poems for her husband.”
The State also asserts that Willey’s alleged threats and Janice’s fear of him were relevant because Willey testified at trial that he had not threatened Janice. These witnesses testified in the State’s case in chief, before Willey took the stand. The State cannot bootstrap this evidence into admissibility by putting it in, forcing a deniаl,, and then claiming it was put in issue by the defendant. In sum, because Janice’s fear of Willey was not relevant to any issue in the case and Willey did not place her state of mind in issue, we hold that the trial court abused its discretion by allowing these witnesses to offer hearsay testimony regarding Willey’s threats and Janice’s fear of him. 5
We disregard error in the admission of evidence unless it affects the substantial rights of a party. Ind. Trial Rule 61;
Fleener v. State,
IV. Admission of Photographs
Willey contends that the trial court erred by admitting several autopsy photographs that showed the victim’s body in an altered condition. Three of these photographs showed the interior of the victim’s skull and one showed the pathologist’s gloved hands holding the brain. Because Willey did not object to these photographs at trial, any challenge is waived on appeal.
Woods v. State,
Y. Double Jeopardy
Willey next contends that the trial court erred when it sentenced him for both felony murder and conspiracy to commit burglary. Willey makes his argument under the federal “Double Jeopardy Clause which protects against ... multiple punishments for the same offense.
North Carolina v. Pearce,
Federal double jeopardy claims are controlled by the “same elements” test set forth in
Blockburger v. United States,
VI. Sentencing
The jury convicted Willey of five counts, but the trial court merged the sentences on three of those counts and sentenced Willey only for felony murder and conspiracy to commit burglary as a Class A felony. 8 The trial court found several aggravating factors when it sentenced Willey to maximum and consecutive sentences of fifty and sixty-five years. The factors uncontested on appeal include Willey’s criminal *446 history, which included a 1986 conviction for operating while intoxicated and a juvenile conviction for theft; the facts and circumstances of the crime, including that Willey instigated and initiated the crime; the duration of the conspiracy process and “the great care in the planning process;” and the brutality of the murder against a victim who was “physically infirmed.” The trial court found no mitigating сircumstances.
Willey contends the trial court improperly found as aggravating circumstances his lack of remorse and that a reduction in the sentence would depreciate the seriousness of the crime. We need not address these contentions because a single aggravating circumstance may be sufficient to support an enhanced sentence.
Thacker v. State,
Conclusion
James R. Willey’s convictions and sentences are affirmed. This case is remanded for correction of the clerical errors explained in footnote 8.
Notes
. The statement reads as follows:
1. I have engaged in several conversations with Roger Barnard, my best friend, who works at Drew Corp. and who lives on St. Claire Street in Mooresville, Indiana, about Roger going to my old residence, 1195 Bloor Lane, Zionsville, to personally injure my ex-wife, Janice Willey.
2. Further, that I knowingly participated in this activity and was a willing partner to Roger inflicting bodily injury to Janice Willey.
3. Roger and I both agreed that this crime would be carried out while I was in Florida. I told him that she would normally be home on Wednesday nights, and that I knew, before this crime took place that it was going to occur on Wednesday night.
4. Roger told me he was going to be inside the garage when she came home from work, and that’s when he was going to beat her up. It was supposed to be where he would rough her up.
5. I made sure that my whereabouts could be accounted for while I was in Florida, during last Wednesday night, so I could not be blamed for this.
6. I gave Roger 70 $100.00 bills for a total of $7,000.00 to hold for me just before I left to go to Florida. I also gave him a Gold Bulova wrist watch to hold. Additionally, I gave him some handguns and rifles to hold for me. The cash was in a plain white envelope sealed.
7. I have threatened Janice before.
8. I was mad at Janice because she booted me out last November, 1996.
9. The night before I left for Florida, Roger told me he would carry this out.
. These included (a) Willey was without advice of сounsel; (b) he “received no explanation of the law of evidence in the State of Indiana as it relates to polygraph examinations”; (c) the theory of operating the polygraph or its reliability was not explained to him; (d) Willey “received no advice as to whether he should or should not sign the Stipulation”; (e) his "willingness to take the polygraph was solicited under circumstances which involved blatant deception on the part of an agent of the State”; (f) Willey was not apprised that he was a suspect in Janice’s murder; (g) the language of the stipulation is "confusing” and contains conflicting provisions; (h) the stipulation was not approved by his attorney and should not be binding on his attorney; (i) the stipulation is сontrary to law because "it attempts to provide for admissibility of some evidence while not providing for admissibility of the actual charts”; (j) Willey was not informed or educated about the polygraph such that he could "make an intelligent decision as to whether he should sign the Stipulation”; (k) the stipulation "does not specifically state that either the Defendant or the Prosecuting Attorney agreed to the admission into evidence of the polygraph test results, particularly the Examiner’s opinion on the issue of deception”; and (I) the stipulation "does not specify the forum or purpose of 'admissibility,' ” i.e., it "does not specifically provide that the matter covered may be admitted at trial and presented to a jury.”
. This Court’s opinion in
Sanchez
does not specifically note the role of defense counsel in the stipulation before it. However, the Court of Appeals found that “the stipulation was signed by the appropriate parties inasmuch as Sanchez was not represented by counsel at the time.”
Sanchez
v.
State,
. For example, Phyllis Phenis testified that Janice told her in early May that Willey "had threatened to kill her, that she wasn’t going to leave him, she wasn't going to leаve the home and if she did she’d pay the price.” When asked if Janice had told her of any "specific threats” made by Willey, Clare Wolf responded that Wil-ley had “threatened her, that he would kill her.... At least a dozen times, it wasn’t just once.” Zionsville police officer Jerry Harris recounted Janice’s statement to him when he responded to -the May 5 incident. Harris testified that Janice said, "You know the bastard is going to kill me.” Finally, Willey’s sister, Ruth Wilson, testified that “she said she was afraid. And I asked her why. And she said, ’[bjecause I’m afraid he’s going to kill me.’ ”
. At trial the State contended that hearsay statements offered through the testimony of Janice's psychologist fall under Evidence Rule 803(4) (statements for purposes of medical diagnosis or treatment).
See also McClain v. State
. The State contends that the admission of the photographs was not error. However, as this Court recently observed in
Allen v. State,
686
*445
N.E.2d 760, 776 (Ind.1997), "autopsy photographs are generally inadmissible if they show the body in an altered condition.”
Allen
cited
Loy v. State,
. However, Willey does argue that the two sentences should “merge” and cites Indiana authority for the proposition that a defendant cannot be sentenced for both felony murder and the underlying felony.
See McCurry v. State,
. The trial court's oral pronouncement at the August 22 sentencing hearing was as follows: "on COUNT IV, MURDER, this Court sentences *446 you to the maximum term of sixty-five (65) years; on COUNT II, I believe, CONSPIRACY TO COMMIT BURGLARY, CLASS A FELONY, the Court sentences you to the maximum term of fifty (50) years; for a maximum consecutive term of one hundred and fifteen (115) years.” Three days later the trial court signed an Abstract of Judgment that sentenced the defendant to fifty years for Count II and sixty-five years for Count V, burglary as a Class A felony. Five days later, the trial court issued its written sentencing order that was consistent with the Abstract of Judgment, but at odds with the oral pronouncement at the sentencing hearing.
The trial court’s comments at sentencing clearly indicate that Counts I, III, and V merged into Counts II and IV and that it sentenced the defendant on the latter two counts. Based on the unambiguous nature of the trial court’s oral sentencing pronouncement, we conclude that the Abstract of Judgment and Sentencing Order contain clerical errors and remand this case for correction of those errors.